New Jersey Governor Phil Murphy signed into law Bill A-2617/S-2998, an amendment to the New Jersey Workers’ Compensation Law that will require employers to provide a “hiring preference” to any employee who has reached maximum medical improvement following a work-related injury. The Amendment, signed on September 24, 2021 and effective immediately, essentially grants employees who are unable to perform their jobs due to work-related injuries certain accommodation protections that are similar to and potentially greater than those provided by the New Jersey Law Against Discrimination for employees unable to perform their jobs due to other disabilities.
The Amendment applies to New Jersey employers of at least 50 employees. It protects only employees who are injured at work and have reached maximum medical improvement (MMI) under the New Jersey Workers’ Compensation Law (NJWCL)—meaning additional medical treatment of their work-related injuries will not improve their conditions—and are unable to return to the position in which they were previously employed, but are not completely unable to work due to disability.
The Amendment does not apply to contractors, as defined by the NJWCL, or athletes employed by professional sports teams.
The Amendment requires an employer to provide a hiring preference to an employee who has reached MMI from a work-related injury and is unable to return to the position they held before that injury. The employer must grant the qualifying employee the preference for any of the employer’s existing and unfilled positions for which the employee can perform the essential duties of the position. However, employers are not required to create new positions for injured employees or remove current employees from existing and filled positions to accommodate injured employees.
The language of the Amendment leaves several key questions unanswered for employers. For example, noticeably absent from the Amendment and its legislative history is any definition of the phrase “hiring preference.” There are several interpretations. First, such a preference could mean that if all things are equal among candidates, it serves as a tiebreaker. It could also mean that it trumps the higher or better qualifications of other candidates, so if the minimum qualifications are met, the preference controls. Finally, it could mean that previously injured employees are automatically placed at the front of the line and other candidates need not even be considered—employers would have to seek out current or former employees who have reached MMI each time they seek to fill a position. Each interpretation has support. For example, in New Jersey, qualified veterans who receive a hiring preference for civil service positions are placed at the top of open competitive employment lists, even ahead of non-veterans who have higher scores. Similarly, the US Equal Employment Opportunity Commission has interpreted the Americans with Disabilities Act (ADA) as requiring an employer to reassign a qualified employee who is unable to perform their prior role due to a disability to a vacant position for which the employee is qualified, even when the employee is not the best-qualified employee for such position.
The Amendment also does not identify any maximum time period during which the injured employee is eligible for a hiring preference. While the plain language of the law suggests that only current employees are eligible for a hiring preference, it does not explicitly foreclose an employee who was injured years before reaching MMI from claiming a hiring preference. The Amendment also does not refer to penalties or enforcement procedures for non-compliance, including a private right of action.
Nevertheless, at a minimum, employers should now ensure that they take affirmative steps to try to place employees who have reached MMI, but are unable to perform their prior roles, into alternative roles before separating their employment. Doing so will require employers to monitor when employees reach MMI and may qualify for a hiring preference, in addition to other potential accommodations under the ADA or the New Jersey Law Against Discrimination.
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